THE LEGAL FRONT
By JUSTICE ART D. BRION (RET.)
Up for action now by the Judicial and Bar Council (JBC) and soon by President Rodrigo Duterte is the filling up of Supreme Court vacancies – two associate justices positions and the lone chief justice position. Twenty-two are applying for the associate justice positions and four for the chief justice position.
Under our governmental system, the Supreme Court interprets the Constitution in the course of resolving actual controversies involving constitutional limits and violations of constitutional and statutory rights. While the court acts collegially (i.e., as a body) the individual justices’ contributions to the court’s decision are based on their individual reading of the Constitution. This reading, in turn, is dictated by their personal backgrounds, education, training, experiences, competence, predilections and biases, and values.
As the Constitution defines governmental powers and structures as well as the relationship of the government with citizens, the court’s constitutional rulings necessarily impact on the thrusts and trajectories of governance and, in the private realm, on people’s ways, actions, and culture.
A very recent controversy that could have profoundly affected both governance and people’s lives was the same-sex marriage petition that the court recently dismissed for technical deficiencies.
The Court’s grant of the petition would have invalidated current laws that view marriage to be a union between a man and a woman, in favor of the interpretation that the union of men and women of the same sexes also enjoy the status and legal protection of marriage.
Consider how far-reaching the effect of this ruling could have been on the institution of marriage that, from our earliest times as a distinct society, has been interpreted to be the union of a man and a woman.
Can the Supreme Court issue such a ruling?
Under our present Constitution, yes the court can and its constitutional interpretation is supreme, i.e., is higher than any law that Congress may pass or that the President may implement on marriage. The court’s ruling could have found that our present marriage laws violate the Constitution’s Bill of Rights by discriminating against those attracted to and who want partners of the same sex.
Only the Filipino people, acting as the ultimate sovereign, can overturn such Supreme Court ruling through an amendment of our Constitution providing that no prohibited discrimination is involved in restricting marriage to the union of a man and a woman.
A parallel example that carried a similar profound effect on a society was the ruling on slavery, this time by the US Supreme Court – the model used in establishing our own Supreme Court and whose powers practically reflect the powers of our own court.
In 1857, the US Supreme Court in a 7-to-2 decision ruled in the Dredd Scott v. Sandford case that the US Constitution was not meant to include American citizenship and citizenship rights for black people, whether slaves or free men. In short, this ruling upheld the constitutional validity of the institution of slavery in the US.
In another four years, the US was engaged in a bloody civil war – the Northern “free states” vs. the Southern “slave states” – over the issue of slavery. The civil war was fought for four years and caused considerable deaths, desolation, and dislocations. After the war, the Dredd Scott ruling was overturned by directly amending the US Constitution – the 13th amendment that guaranteed citizenship to all persons born or naturalized in the US.
In our own same-sex marriage controversy, some may very well ask (when and if the Supreme Court rules that marriages between same sexes should be allowed) how and why the Court’s 15 men and women can so rule when they are unelected and have not been chosen by the people to represent them.
Very true, the members of the court have not been directly elected by the people, but the people themselves, by approving the Constitution, consented to a governance system that provides for the powers of the court, among them, the power to interpret the Constitution, with binding effect on the whole nation and with no higher authority over it other than the people themselves.
I illustrate the power of the court in this manner in order to drive home the importance of the power of choosing the justices of the court, a task jointly undertaken by the JBC and the President.
As my illustrative examples show, the selection and appointment of Supreme Court justices can carry deep and long-term consequences, some of them the people never even considered or consciously intended when they ratified the Constitution.
It is for this reason that I asked in a previous column prior to the appointment of Chief Justice Lucas Bersamin – “Why, oh why, is the JBC scrapping the public interviews of CJ nominees? (The Legal Front, October 31, 2018).
Ironically, it was allegedly a justice known for his adherence to liberal democratic principles who sponsored the SC resolution scrapping the public JBC interviews of chief justice applicants. Apprehensions about improper questions that JBC members could ask were allegedly among the reasons for the court action.
In my article, I posited that the Filipino people – even if only through the JBC public interviews – should be given the opportunity to view and compare the public persona, positions, predilections, past records and qualifications, insights and biases, values, and the competence of the applicants.
If some JBC members ask improper questions, then the court should be able to preventively or correctively act in the exercise of its supervisory powers over the JBC. To be sure, the remedy is not to scrap the JBC public interviews – a move that reflects more on the court’s values rather than on the propriety of the questions the JBC members can ask.
In fairness to the JBC, it recently announced that there will be public interviews of all Supreme Court applicants. These interviews can be viewed personally or through live streaming at the Court premises. The JBC now also requires applicants to write essays, presumably to test their writing and reasoning abilities.
Congratulations and more power to the JBC! I can only wish now that the interviews would be shown on public television in the same manner that the investigation of the “good conduct time allowances” scandal is aired live.